James v. State

• Decision Date: 28 April 2000
• Citation: 788 So.2d 185
• Parties: Joe Nathan JAMES, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

788 So.2d 185

Joe Nathan JAMES, Jr. v. STATE.

CR-98-2417.

Court of Criminal Appeals of Alabama.

April 28, 2000.

Rehearing Denied June 23, 2000.

Certiorari Denied December 15, 2000.

George Babakitis, Birmingham; Talitha Powers Bailey, Birmingham; and Wilson Myers, Sr., Birmingham, for appellant.

Joe Nathan James, Jr., appellant, pro se.

Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

Alabama Supreme Court 1991959.

BASCHAB, Judge.

The appellant, Joe Nathan James, Jr., was convicted of capital murder for killing Faith Hall. The murder was made capital because the appellant committed it during a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed two motions for a new trial—one pro se and one through counsel—which were denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal follows.

Because the appellant does not challenge the sufficiency of the evidence to support his conviction, a lengthy recitation of the facts of the case is not necessary. However, we have reviewed the evidence, and we conclude that it is sufficient to support the appellant's conviction. The trial court summarized the relevant facts of this case as follows:

"The [appellant], a former boyfriend of the victim, Faith Hall, had been stalking and threatening Ms. Hall before her death. On the evening of August 15, 1994, as Ms. Hall and a friend returned to the friend's apartment, they saw the [appellant] following them in his vehicle. When they saw the [appellant] they began to run to the apartment.

"Despite their attempts to hold the front door closed, the [appellant] forced his way into the apartment. Ms. Hall began to scream, as the [appellant] came in with a pistol in his hand. When she couldn't calm him down, she began to run for the front door. The [appellant] shot at her, but missed. Ms. Hall turned and ran toward the bathroom as [appellant] followed and shot her in the head, chest, and abdomen. The [appellant] ran out the back door and left in his automobile. Ms. Hall died from her wounds. The [appellant] was arrested in California."

(Supp. R. 7.) Additional facts are included, as necessary, throughout this opinion.

In his brief, the appellant raises several issues that he did not first present to the trial court. His failure to object will not bar our review of an issue in a case involving the death penalty. However, it will weigh against any claim of prejudice he may allege. See Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Rule 45A, Ala. R.App. P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 n. 14 (1982)).

I.

The appellant's first argument is that the trial court erroneously admitted into evidence police reports that contained inadmissible hearsay within hearsay. (Issue II in the appellant's brief to this court.) Because the appellant did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.

At the beginning of the trial, the State marked all of its exhibits, including four police reports, for identification. (F.R.16.)¹ However, although copies of the reports are included in the record on appeal, the record does not show that the reports were admitted into evidence during the trial. Therefore, the appellant's argument is moot. See Perkins v. State, [Ms. CR-93-1931, November 19, 1999] ___ So.2d ___, ___ (Ala.Crim.App.1999). Accordingly, we do not find any error, much less plain error, in this regard.

II.

The appellant's second argument is that the trial court erroneously admitted what he alleges was irrelevant, unfairly prejudicial evidence that did not have any probative value. (Issue IV in the appellant's brief to this court.) Specifically, he contends that the trial court erroneously admitted:

"1. Photographs which contained graphic depictions of wounds not caused by [him].

"2. Testimony of the medical examiner about surgical or medical treatment of the victim, needle puncture sights, puncturing the jugular vein, puncture sites on the wrists, a Foley catheter, a colostomy site, etc.

"3. Photographs that were admitted and then magnified 10 or more times in a slide projection on a screen.

"4. Testimony of the medical examiner of a tube that entered the victims nostril when said tube was not introduced by [him].

"5. Testimony of the medical examiner of a sewn surgical incision where [doctors] have explored.

"6. Testimony of the medical examiner that a wound might have been incapacitating if it was left untreated.

"7. Evidence of drug tests performed on the victim."

(Appellant's brief at p. 18.) The appellant did not object to the admission of any of this evidence during his trial. Therefore, we review the admission of this evidence for plain error. See Rule 45A, Ala. R.App. P.

The gist of the appellant's argument is that the trial court should not have admitted photographs and slides of the victim that depicted wounds caused by medical treatment and should not have allowed the medical examiner to testify about that medical treatment. In reviewing the photographs and slides, we are guided by the following principles:

"Appellant's final contention of error is that the trial court erred in allowing the prosecutor, during the testimony of the medical examiner, to illustrate the nature of the victim's wounds by use of 17 photographic slides of the victim's body. Appellant argues that these slides were irrelevant, inflammatory, inaccurate, misleading, and cumulative, and that the trial court should not have allowed the medical examiner to use them as an aid to his testimony.

"Generally, photographs are admissible into evidence in a criminal prosecution `if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge.' Magwood v. State, 494 So.2d 124, 141 (Ala.Cr.App.1985), aff'd, 494 So.2d 154 (Ala.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also Woods v. State, 460 So.2d 291 (Ala.Cr.App.1984); Washington v. State, 415 So.2d 1175 (Ala.Cr.App. 1982); C. Gamble, McElroy's Alabama Evidence § 207.01(2) (3d ed. 1977).

"It has long been the law in Alabama that `[p]hotographs which show external wounds in the body of a deceased victim, even though they are cumulative and based on undisputed matters, are admissible. The fact that they are gruesome is not grounds to exclude them so long as they shed light on the issues being tried.' Burton v. State, 521 So.2d 91, 92 (Ala.Cr.App.1987). See also Kinder v. State, 515 So.2d 55 (Ala.Cr.App.1986). The fact that a photograph is gruesome and ghastly is no reason to exclude it from the evidence, so long as the photograph has some relevancy to the proceedings, even if the photograph may tend to inflame the jury. Magwood v. State, supra, 494 So.2d at 141. See also Hutto v. State, 465 So.2d 1211 (Ala.Cr. App.1984); Jones v. State, 439 So.2d 776 (Ala.Cr.App.1983); Godbolt v. State, 429 So.2d 1131 (Ala.Cr.App.1982).

"This rule of law applies not only to photographs, but to photographic slides as well. Goffer v. State, 430 So.2d 896 (Ala.Cr.App.1983). In Goffer, we wrote as follows:

"`. . . .

"`... The slides were just enlargements of photographs and the wounds were shown in relation to the deceased. The slides gave the jury a better understanding of the nature and gravity of the deceased's injuries, and we do not believe the slides distorted the injuries or misled the jury in any way.'

"430 So.2d at 898-99.

". . . .

"Appellant also contends that the slides were misleading to the jury because they revealed postmortem sloughing of skin and other signs of decomposition. Specifically, he argues that the slides revealed `circumstances of death that had nothing to do with the defendant's character, the nature of the crime, or an appropriate sentence.' However, this evidence of decomposition was entirely separate from the stab wounds to which the jury's attention was focused, and the medical examiner carefully pointed out to the jury these other factors and identified them as being due to post-mortem deterioration of the body. Thus, we see no reason for the jury to have been misled by this aspect of the slides.

"Appellant further argues that, because several slides showed wounds into which probes had been inserted, the slides did not accurately depict the wounds. The State argues, and we agree, that while probes were shown in some wounds, they were inserted for the sole purpose of illustrating the depth and nature of the wounds, relevant factors in determining whether the crime was especially heinous, atrocious, or cruel. The probes were consistently pointed out to the jury, and their function was explained. Moreover, the use of the probes did not distort the size of the wounds so that they appeared larger than they actually were; thus, this case is distinguished from Wesley v. State, 32 Ala.App. 383, 26 So.2d 413 (1946). Therefore, the jury could not have been misled by the insertion of probes into

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